MEDCARE SUPPLY, INC., a/a/o TRISTAN HINDS, plf-app, v. FARMERS NEW CENTURY INS. CO. def-res

14-371. MEDCARE SUPPLY, INC., a/a/o TRISTAN HINDS, plf-app, v. FARMERS NEW CENTURY INS. CO. def-res — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order — Order (Jennifer G. Schecter, J.), entered April 15, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

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14-371. MEDCARE SUPPLY, INC., a/a/o TRISTAN HINDS, plf-app, v. FARMERS NEW CENTURY INS. CO. def-res — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order — Order (Jennifer G. Schecter, J.), entered April 15, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

The action, seeking recovery of firstparty no-fault benefits, is not ripe for summary dismissal. The defendant insurer failed to establish, prima facie, that it did not timely receive the plaintiff provider’s no-fault claim. In this regard, defendant relied on the affidavit of a claims representative employed in the Hicksville, New York office of non-party Farmers Insurance Exchange (“Exchange”), the entity which “administers claims” on defendant’s behalf. Although the affiant averred that there was no record of the underlying no-fault claim in his office’s paper and computer files, he professed no personal knowledge of the practice and procedures put in place by defendant in connection with the handling of no-fault claims sent to its Oklahoma City office, the designated mailing address for the submission of such claims (see Westchester Med. Ctr. v. Philadelphia Indem. Ins. Co., 69 AD3d 613, 614 [2010]).

MEDCARE SUPPLY, INC., a/a/o TRISTAN HINDS, plf-app, v. FARMERS NEW CENTURY INS. CO. def-res

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